Vail Law column: Adverse possession and condemnation explained, Part 1 | VailDaily.com

Vail Law column: Adverse possession and condemnation explained, Part 1

Editor's note: This is the first part of a three-part series.

Pam Boyd's fine reporting in the April 28 Vail Daily concerned the Barnes Ranch parcel and the town of Eagle's efforts to acquire a slice of it which the town asserts is necessary to tie the proposed Eagle River Park together. Without it, the town claims, the park will not come to fruition — at least not in the way conceived.

Ninety-two-year-old Phyllis Johnson, co-owner of the parcel, made clear in a recent meeting with the town board that she and her co-owner have no intention of going quietly in giving up their rights, that they will fight and hiss and scratch to keep their birthright. The land is theirs and that is that! No amount of money thrown their way will budge them. The land is not for sale!

During the thrust and jab of Johnson's presentation to the board, her daughter, Alexis Kensinger, detailed an April 21 letter from the town in which Mayor Anne McKibbin wrote that the town had fenced and made use of the parcel now sought to be acquired "for decades." In summarizing her argument, Kensinger said, "We get to decide (whether we will subdivide the parcel and sell a portion to the town). This is America." It is indeed … and subject to the law of the land … concerning land, its alienability, the law of adverse possession and the public right of condemnation.

As Boyd reported, Kensinger "singled out a sentence in the town's letter related to an adverse possession taking of property." "We believe," the sentence read, "that Eagle County has a strong argument that it has obtained much of the property … through adverse possession." The offer to buy the land extended by the town was to "resolve the matter amicably" instead of resorting to legal process.

Kensinger observed that "It is clear that adverse possession is on the table." She went on to say, "It is also clear that (the owners) have been paying taxes on the … property for many years, including (the part the town would like to take)."

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Use and taxes

You will see, as we proceed through this series, that the town has fenced and used the property "for decades," and that the owners have "paid (taxes) … for many years," may be essential elements to how this all sorts out.

In summary, Kensinger noted "… the town is threatening adverse possession. That is basically to take the land…. Is that what we are about in Eagle these days? Taking private land from a local? I wonder how that will play out on the stage of popular opinion — to take land from a 92-year-old lady who has had the land in her family for 90 of those years?"

Kensinger is right: what this is "basically" about is the town acquiring private land against the wishes of the owners. But, without any intended disrespect to Kensinger or her mother, "taking private property" from "locals" or otherwise is what this country — and Mother England — has long "been about." The concepts of adverse possession and its kissin' cousin, condemnation, are far, far older than this particular dispute and far, far older than Johnson's understandably heartfelt attachment to the land.

Apparently, no final decision has yet been made by the town board whether to move forward in the courts to try and obtain the land against the owners' wishes, whether to put their shoulder once again to informal resolution, or whether to yield and work the park around the Barnes Ranch parcel.

What all this does raise, though, is how is it that real property (land and its attachments) may be acquired by the government (or private citizens) against the interests and wishes of the owner. Simply, how can the government or private citizens make what is yours, theirs?

That is the subject of the next two parts.

Explaining, not judging

To be clear, this series is not meant to take sides, pre-judge, offer opinion or in any way mock or disparage either side. Sympathies reasonably extend in both directions. Instead, the series is simply meant to educate so that when the rubber of this matter hits the road, the stake-holders and the public are familiar with the legal concepts that are in play and which may ultimately presage the outcome.

In abbreviated form, "adverse possession," is a concept derived of the "common law" whereby a person in possession of land owned by someone else may acquire valid title to it, so long as certain requirements are met, and the adverse possessor is in possession for a sufficient period of time.

"Common law," you may recall from prior columns, is the law developed over time by the accumulation, decisions and precedent of prior cases. It is, in a sense, the legal DNA derived of the evolution of cases by means of trial, error and decisions and is distinct from statutory law which is law created by legislative enactment.

Adverse possession's cousin, "condemnation," is a related concept. It is the process of implementing eminent domain, whereby the government takes private property for public use. "Eminent domain," in turn, means the power to take private property for public use by a state, municipality or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of the property.

While what is being kicked around in Eagle is adverse possession, we will discuss both condemnation and adverse possession in the next two parts, as understanding the first concept is related to and helps understand the second.

The bottom line is this; what is yours ain't necessarily so. Under the right circumstances, it can be taken from you. When Kensinger asked, "Is that what we are about … these days? Taking private land from a local?" Yep. And so it has been since the earliest days of the Union. And long before in England from which our concepts of law originally derived.

In the next part, we will delve into a more thorough-going discussion of adverse possession, and in the third part, condemnation.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.